Mediation as Regulation: Expanding State Governance Over Private Disputes

Abstract

Across the United States, state legislatures are issuing new mediation mandates that govern how private parties resolve their disputes. Legislatures embed these mediation mandates into specific statutory regimes ranging from foreclosure to health care to insurance coverage. Rather than leave decisions about ADR design to other state institutions, like courts or administrative agencies, legislatures increasingly retain that authority and formalize the mediation process with legal requirements that regulate parties’ behavior and influence mediation outcomes. This Article explains how legislatures wield mediation as a regulatory tool in this latest phase of mediation’s institutionalization. It argues that statutory mediation mandates should be viewed as a form of decentralized governance, a paradigm that reconfigures the relationship between public and private spheres of power. Viewing these mandates as decentralized governance reveals what can be helpful, and also problematic, about formalizing mediation and underscores why legislatures must exercise care when designing procedural architecture.

Keywords: mediation, legislation, policy, governance, ADR